Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-04-21
SUPREME COURT.
synopsas of Decisions Rendered at the
Present Austin Sitting.

ton and R. r. Games, associate justices;
G. S. Morse, clerk; M. NJ. Johnson, bailiff.
A. Nj. McMurray vs.. +. j. McMurray,
from Live Oak county. Opinion by Stay
ton, J. This action was brought by ap-
pellant on January 81, 1885, to Vacate
decree rendered on March Is, 1888, in
that court, and to recover her share of
the community property. Appellant
claims that she was defrauded by willfully
false testimony of her hus-
band on the trial of an action for divorce
instituted by MIN. The appellants petl-
ton alleges that she was IN Louisiana
1000 miles away, with the consent of her
husband, when she was served with
notice of proceedings for divorce. She
8 leges that she was without means TO
come to Texas, but procured counsel by
letter, and such evidence as was possible.
That she had not abandoned her hus-
band, and that he instituted the pro-
ceedings with the intention to defraud
her of her interest in the community
property. That ner husband testified
falsely that his property was only S2O, 100,
when in reality it was S55, 900, all of
which was community property except
about $1,000, and that she only got $500
IN the decree of the court. The reason
able inference was that the
falsity of the evidence was not discovered
until after the term of court at which the
judgment was rendered. The demurrers
TO the petition were sustained and the
cause dismissed. The district courts of
this state doubtless have all the powers
of courts of equity to give relief where
Judgment has been obtained by
s +ba in hi
case is whether the facts entitled the ap-
pellant to relief. Appellants petition
charges that her husband Wilfuliy tes-
titled fraudulently about the amount of
his property, bat it is generally held
that Judgment will not be
vacated unless the false testimony was
introduced through the procurement of
the party benefited by it. The question
of reCOnsidering q decree or Judgment
has been largely discussed, and there
have been many decisions relative to 1t,
but the prepOnderanCe and weight OF
opinions are that when q decision or
Judgment has been obtained by false
testimony which could not have been
discovered by the diligence of the party
or his counsel before the decree, relief
should be granted, aIJhouge the welfare
of society demands as a rule that cases
decided by court of competent juris-
diction should not be relltigated. In the
case before US it appears that the
decree was granted mainly on
the false testimony as alleged by appel
lant's petition, an / as to community prop
erty the husband should act in good faith
respecting the rights of his wife, as he Is
invested with its management and is pre-
sumed to know all about it. The law
protects those who labor under its inca
paCities. For the error in sustaining de-
murrer in dismissing the petition the
judgment is reversed ana the case re-
manded.
j. G.. Oyerstreet VS.. + r. Manning.
from SlaCkelfOrd county; opinion by
Willie, G. J. This was q suit brought by
appellant against appelIees r. Z. Watts,
A. P Root and G. L. Price to recover
from Watts three, promissory notes and
to fOreClOse q lien given by Watts
on flock of sheep which
it was claimed belonged to Watts, who
set up no defense, and judgment was
taken against him. Root and Price set
up a claim against half interest of the
sheep by a conveyance made before the
execution of the notes; the claim was
abandoned as to them, aud went
to issue only as to appellee. APP
pellee Clsimed other half interest
in the sheep in considerations for debt
due by Watts to him, and his assumption
of two other debts, one of which he had
paid and the other he bound himself to
pay, both of which were liens on said
property. The judgment was rem
dered tor appellees and appeal was taken.
The evidence showed that the lien of ap-
pellant was prior to conveyance to ap-
pellee. but was never recorded and Man
ming had no notice of it whom he
purchased the property. 1t was also
shown that the purchaser of the sheep
was made by the eXtinguishment of u
debt from Watts to appellee and the
assumption by appellee of two debts
due by Watts, one of which was
paid Gfter commencement of this
suit and the other wss a note which ap-
pellee had guaranteed for Watts previous
to the purchase of the sheep by Watts.
There are many errors, but the three
plilCipal questions are: l. Is Manning
protected against the unrecOrded lien as
a bona fde purchaser for value? 2. Is he
protected as purchaser within
the meaning of the chattel mort
gage account. ). Was 1t competent to
prove an Indebtedness from Watts to
Manning by the admissions of the latter?
l. 1t has been settled in this state that
one who buys at voluntary sale from
his debtor and pays no money, but credits
the amount of the consideration upon a
pre-existing debt is not bona fde pur-
chaser for value, because he loses moth
ing if the apparent title Of his vendor
should prove worthless. In this case
Manning parted with no valid security or
incurred no new liabilities. IN regard to
the assumption of the note which
ne guaranteed, the holder of the note
WAS in no better position by such as
sumption and l. would only affect the
parties to it unless accepted by the
holders. The Hogan mortgage which he
paid of was no new Considera
ton, but he had to pay it to per ect his
title, and if 1t was new consider
alton il was paid off after
commencement of this suit. The agree
ment as to the debt was not valid con-
sideration. 2. 1t has been held by this
court that chattel mortgage unreCorded
is void as to creditors, but the
word creditors means creditors
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